September 17, 2007

Leo McKinstry in this week's Spectator has launched a ferocious attack against the Sidney Lumet Film Twelve Angry Men. Made in 1957, the film takes place entirely (almost!) in a jury room and concerns the deliberations at a trial. You don't see anything outside the jury room, we have no idea about the process of the trial save for what is said by the jurors. All we know is that they are trying a capitol case, a case of murder, and they then present the evidence. McKinstry sees the film as a sophistical attempt to create doubt in the mind of the viewer. He is though entirely wrong.

McKinstry's critique of the film contains several vital errors and misses almost all of the points that the film actually makes about the judicial process. The central point of Twelve Angry Men is about doubt. Again and again Fonda's character comes back to ask the question could x or y have seen what they testified to seeing, could they have heard what they testified to hearing. There are two eye witnesses in the case- an old man who lives downstairs and heard a boy murdering his father, and a woman who lived across the alley who says that she saw it happen. It's established that as the father is murdered a train was passing by, substantial evidence to suggest that the old man could not have distinctly heard the boy's voice. It's also established that the prosecution have concealed that the woman wears glasses. Both of these facts don't establish the witnesses are lying but they do establish a degree of doubt within the minds of the jurors which means that they cannot convict.

What McKinstry cannot get is that the concept of jury trial, restated in dramatic form here, is precisely that. Once you have acquired a reasonable doubt about some evidence you cannot convict upon its basis. There are other reasons to doubt the testimony provided in the trial. Some of the evidence in the trial, members of the jury are able to show, was actually wrong. The boy's knife it was argued was a unique weapon, but actually Fonda's character manages to purchase one round the corner from the court. Furthermore it is suggested that the stab wound into the father's chest came from a downward action, another juror who lives in the slums suggests that anyone habituated to using the knife would only use it going upwards, never downwards. Further doubt is therefore cast on whether the weapon could have been used in the way that the prosecution allege.

Not merely that but Fonda demonstrates something about the boy's alibi as well. There is a long discussion about whether the boy should have been able to remember what films he had seen on the night in question when he claimed that he was in the cinema. As Fonda shows its perfectly possible to forget such incidental detail, even without the shock of one's father's death and one's own arrest for murdering him. The point is made therefore that the boy is not neccessarily lying or at least that a reasonable doubt exists as to whether he is lying or not.

To say all of that is not liberal or conservative- at least in the way that those terms are conventionally explained. McKinstry seems to miss this- he seems to miss that if there is a conservative critique of jury trial it could indeed rely upon this film suggesting that reasonable doubt is too difficult a standerd to meet. One British judge, in private conversation with me recently, doubted as to how a jury could ever convict beyond reasonable doubt and its a sensible position to have, but that's a philosophical argument. If you oppose this film then you oppose the whole concept of jury trial. For in this film jury trial works perfectly. Twelve men sit in a room and debate and find that there is a reasonable doubt as to the guilt of the accused.

Lets be clear about what that means. McKinstry isn't. He says that the case for the defence involves inconsistencies. There is no question that the case in the film for the not guilty verdict is not neccessarily internally consistent but it doesn't have to be. The jurors are not called upon to evaluate the man's innocence but to evaluate his guilt and what they find is that he is, as the verdict has it, not guilty. Amongst the cleverest things about the film is the way that it never informs you about whether the accused actually is guilty or innocent- he could be either. What can definitely be said is that there is not enough evidence to send him to the chair. McKinstry fails to realise that the burden of proof is not upon the defence but upon the prosecution.

The process of the juror's discussion is the film's main subject. Much of those discussions demonstrate that the jurors voting for guilty are voting on the basis of prejudice. One juror has racist feelings about 'them' and what 'they' are like. Another juror wants a quick verdict so he can see a baseball game. A third juror has confused feelings about his own son which he transposes over to the trial. All these jurors end up facing moments of revelation or moments where their attitudes are revealed in their entirity- and often they bring their own lives from outside the court room into the room. So for instance an old man is able to say that another old man might just might have seen things he hasn't because he wants to be important.

There is something else here though which McKinstry objects to and yet again is wrong to object to. At one point, in his first speech Fonda says that he votes not guilty because the accused has been kicked around all his life and he thinks he should have a chance. Lets be clear about what Fonda is saying here. At this point in the trial Fonda doesn't know the kid is not guilty, he doesn't suggest that he actually is. He just wants to kick around the evidence and think about it. He wants to give the kid a chance of having someone deliberate seriously about his innocence or guilt. What this reflects is two things. Firstly an eminently moral instinct. Fonda doesn't believe that any human being should be sent away to his death without a hearing. He is sympathetic to that extent. Secondly it reflects the fact that during the trial with one exception the jurors all take the process seriously. Whether they vote guilty or innocent they have all thought about it, as a member of a jury that actually matches well with my experience of the way that jurors behave.

But Fonda's point is a point which comes from outside. A robotic intelligence would not see the need for a discussion, Fonda does. Part of the reason that we have jury trials is because we trust the people, the twelve in this case men, who sit down and find guilt or innocence. They do that using their own native wits and their own experience of life. Not all experience is equal: Fonda's sympathy which allows the boy a hearing is more equal than the racism of the other juror but it is all relevant to the process of the trial. Jurors must decide the case on their own common sense. McKinstry at one point hammers them and especially Fonda for being prejudiced, again he has failed to understand. For the soul of jury trial, is that prejudices are tested, the experience of being in a jury room tests your prejudices by confronting them with the prejudices of the others there. But also there are some prejudices, for instance Fonda's to sympathy or the old man's instinctual understanding of another old man, that are useful. Not all judgements can be rational and not all judgements are rational. There is no test which can decide, except debate.

Ultimately what McKinstry thinks is that this film is a sophistical film. It stretches to make a point about the innocence of a man who is definitely guilty and manipulates the truth to do it. But he is entirely wrong. The film is socratic. The most socratic institution within our society is the jury trial. It is the place where argument and thought test each other out, where prejudice meets prejudice, and where the ultimate test is not whether you guess x or y but whether you know x or y. If there is a scintilla of doubt in your mind, you must find the person not guilty even though there is then the possibility that you have let free a guilty man. McKinstry is too modernist to have remembered that old rule that it is better eleven guilty men walk free than that one innocent be convicted.

McKinstry also doesn't understand that what happens after conviction and the process of conviction are very different things. He lambasts the justice system and mentions such miscarriages as the OJ Simpson trial where guilty men were set free, but forgets that there have been cases both in the Uk and the wider world in which innocent men have been imprisoned or even hung. The case of Randall Adams demonstrates that a jury that doesn't pay attention to the evidence can end up almost hanging an innocent man, and worse from McKinstry's view letting a guilty one off free. In that case you can see that a McKinstry view of the justice system might well be one where the innocent do less well.

Twelve Angry Men remains a wonderful film and exploration of the jury system. Styllistically its also worth noting- the pictures in this article come from various stages of the film- note how towards the end the camera angle moves lower. That is to give the impression of the room getting smaller and more claustrophobic. With simple devices like that, and a wonderful script, not to mention some wonderful performances, I am definitely willing to agree with McKinstry that the director and his actors did brilliantly. The film is a styllistic tour de force. But whereas McKinstry sees that as part of a styllistic forgery, I rather see it as a wonderful expression of a good idea about justice, guilt and innocence. Thoughtful and interesting, this classic deserves to be watched long after my name and Leo McKinstry's have vanished into the dust.

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comments:

I haven't seen the film, so can't really comment on it - but it does surprise me that the author of the criticial article is attacking the idea of jury trial and that someone should only be convicted if the evidence suggests 'beyond reasonable doubt' that they did it. To me, these safeguards are important for the rights and liberties of the individual and I am surprised that the Right criticise it [since surely they would be in favour of traditional British institutions such as the justice system].

I am not prepared to click on your link to Mr McKinstry’s article. It is obviously not worthy of my time. The film is superb. Brilliantly written, acted and directed. Jack Lemmon said, when he re-made the film, and which remained substantially identical to the original, that it was the best writing he had ever had the privilege of working with. I would merit his opinion before that of Mr McKinstry.

I was pleased to spot his use [to describe contemporary Britain] of the phrase "As violent crime soars". At a time when violent crime is flat if not falling, the use of such language is usually a reliable indicator that someone is an idiot talking rubbish...

I saw it on first release: it must have been the first adult film I saw and enjoyed. But I plead in mitigation that I was 12 - when I saw it again a few years later I thought it mechanical, formulaic rubbish. By then, of course, I'd seen some good continental films.